Commentary on Massachusetts Labor Relations Reporter (Jan-Mar, 2017)

Massachusetts Labor Relations Reporter (April – June 2016 Decisions)
Management Commentary
By
Leo J. Peloquin, Esq. & Joshua R. Coleman, Esq.
Collins Loughran & Peloquin, P.C.

EMPLOYER BARGAINING OBLIGATIONS

Implementation Of Narcan Policy Remains In Place, But Employer Must Bargain Impacts

In Town of Natick and Natick Patrol Officers Association, (43 MLC 178), the Hearing Officer, Kathleen Goodberlet, held that the Town did not have to bargain over the decision to implement a Narcan policy because it was a core managerial decision, but did have to bargain over its impact.

The Town claimed that the administration of Narcan was no different than a patrol officer administering CPR or any other first responder duties and involved minimal training.  The Hearing held that Narcan impacted officers’ workload including: administering medication, evaluating whether a victim should receive Narcan, the amount they should receive, offering medical advice to those who refuse medical treatment and receiving specialized training.  Administering Narcan was a greater safety threat than performing CPR and defibrillation, according to the Hearing Officer, so the Town failed to satisfy its impacting bargaining obligations.

In addition, the Hearing Officer held the employer had not reached impasse before implementing its Narcan Policy.  The Town ignored the Union’s demand to bargain, and the “duration of time spent negotiating…is exceptionally short in comparison to the significance of the issues.”  In addition, the DLR found unreasonable the one year delay in responding to the Union’s information request.

The Hearing Officer did not order that the Narcan Policy be rescinded, only that the Town bargain over the impacts of the policy to resolution or impasse.  While the Union did not demand a status quo ante order, the Hearing Officer noted: “This remedy is appropriate in cases such as this where the effects of an employer’s decision are certain, and the union’s efforts to impact bargain cannot substantially change, but only ameliorate, those effects.  Transmarine Navigation Corp., 170 NLRB 389 (1968).”

Employer Must Bargain Over Elimination Of Free Parking And Dress Codes

In City of Lawrence and Fireman and Oilers Local 3, (43 MLC 170), the Hearing Officer held that the City failed to bargain over unilaterally implementing a dress code requiring all male employees at City Hall to wear ties and eliminating free parking for City inspectors.  The Hearing Officer noted it is well established that dress codes are a mandatory subject of bargaining and the City failed to bargain over this change.

Likewise, the City’s directive that inspectors must discontinue using City placards, which entitled them to park for free without bargaining, violated Chapter 150E.  The Hearing Officer issued a bargaining order and to make the inspectors whole for any economic losses incurred due to parking fees.

Employer Has Right To Eliminate Shifts After Impasse Reached In Just Three Meetings When Union Refused To Change Its Position

In Town of Billerica and Billerica Municipal Employees Association,(43 MLC 195), the Hearing Officer held that the Town met its bargaining obligation prior to eliminating the second, third and weekend shifts in the Waste Water Treatment Plant.

The Hearing Officer held that although the parties only met three times, the Union failed at any point “to change its position or make any proposals or counterproposals about alternative means or methods regarding the impacts of a one-shift operation.”

In January 2014, the Town announced the decision to eliminate specific shifts and offer to impact bargain over the change to a “one-shift” operation.  The Town and Union met twice to discuss the proposed schedule changes.  The Town advised the Union there would be no layoffs and discussed altering some job duties.

The Hearing Officer rejected the Union’s claim that the Town engaged in surface bargaining and noted that the Town solicited counterproposals from the Union throughout negotiations and made changes in its position, unlike the Union.

Employer Has The Right To Reduce Staff, But Must Bargain Over Impacts

In Spencer-East Brookfield Regional School District, (43 MLC 197), the Hearing Officer held that the School District failed to bargain over the impact of its decision to hire only one Before and After School Director.

Approximately two weeks before school started, the employer notified the Union that they would only be hiring one Director for the 2015-2016 school year, unlike the two previous school years.  The District hired one Director for the program and told him he would have to perform additional job duties.  The Hearing Officer determined the parties have historically negotiated the terms and conditions of employment of this position even though it was not listed in the recognition clause and rejected the employer’s claim that this was a voluntary position.

While the District did not have to bargain over the level of services decision, it must bargain over the impacts of that decision.  The Employer did establish an affirmative defense of waiver by inaction, in putting the Union on notice in August 2015 of additional job duties the Director would have to perform beginning in March 2016, and the Union never demanded to bargain over these additional job duties.

The District also failed to bargain over changing the method of payment from a stipend to an hourly rate.  The Hearing Officer rejected the employer’s argument that the contract language gave the District some discretion in deciding the method of payment rate, simply because the contract included an hourly rate.

The Hearing Officer did dismiss the Union’s charge that the employer failed to bargain over the change in holidays.  The Union failed to establish that there was an unequivocal and unvaried practice of closing the program on certain holidays.

CERB Agrees Employer Must Grant Union Access To Schools For Environmental Study

The CERB affirmed the Hearing Officer’s decision in Worcester School Committee and Educational Association of Worcester, (43 MLC 218), that the Union’s interest in obtaining access to the Worcester public schools to conduct environmental studies outweighed the employer’s interest in preventing the Union’s environmental expert from taking caulking samples.

The employer argued that the Hearing Officer could not have determined the Union had right to access the property without first determining that PCB’s post a health and safety risk to Union members.  The Hearing Officer disagreed that the Union had the right to access the building to have its expert evaluate whether or not the caulking needed to be removed.  The Union claimed that five teachers who worked in the wing of the building that was of concern had cancer, and two deceased teachers had worked in another wing.

The DLR agreed the Union had the right to have its own expert conduct testing because to deny the Union access would “undermine the Union’s ability to obtain relevant and reasonably necessary information about its members’ working conditions, particularly in situations, where as here, testing is not required but remediation could be depending on the results of the testing.”

The DLR ordered the District to allow the Union to conduct testing in accordance with state and federal guidelines.

WEINGARTEN RIGHTS

No Right To Union Representation For Non-Subject Witness In Disciplinary Investigation Merely Because Employee Was Warned To Be Truthful

In City of Boston and SEIU, Local 888, (43 MLC 176), the Hearing Officer held the City had the right to deny an employee’s request for Union representation during an investigation in which the employee was not the subject but could have faced discipline if she lied.

In October 2015, the employee’s supervisor wanted to interview her about her co-worker.  The supervisor advised her that if she answered any questions untruthfully she could face discipline.  The employee refused to participate in the interview without Union representation, claiming she had Weingarten rights because of the employer’s untruthfulness warning.

The employer told her she was not entitled to Union representation, as she was not the subject of the investigation and assured her that the purpose of the interview was not disciplinary.  The Hearing Officer agreed with the employer that the untruthfulness warning was part of the “preamble as standard practice for investigatory interviews.”  The DLR dismissed the complaint, finding that the employer had the right to deny Union representation at an interview where the employee was a witness, not the subject of the investigation.

ARBITRATION AWARDS

School District’s Denial Of Personal Day Without Asking Any Questions Is Arbitrary

In Spencer-East Brookfield Regional School District, 43 MLC 165 (2017), Arbitrator Hatfield held that the Superintendent arbitrarily and capriciously denied the school psychologist’s request for three consecutive personal days without requesting any information.

The contract provides for personal leave for:  religious reasons, personal business, household/family reasons and medical reasons.  The CBA states in part: “The administration shall be entitled to determine approval/disapproval of each request based on contractual provisions.  This shall include questions to ascertain information in the following manner:

• Is the Association member to receive non-school compensation during personal day time?
• Is the personal day an extension of a holiday/vacation purpose?”

The employee’s supervisor approved the request for three personal days and submitted it to the Superintendent.  The Superintendent denied the employee’s request without any explanation.  At arbitration, the Superintendent claimed for the first time that she denied the employee’s request because it was for three consecutive personal days.

While the Arbitrator acknowledged that the District had the right to inquire why the employee requested the leave in order to protect the “delivery of educational services”, the Superintendent did not request any information at the time she denied the request.  The Arbitrator ordered the District to repay the employee for three days.

Arbitrator Upholds Employer’s Right To Determine Longevity Based On Creditable Service

In City of Attleboro and Massachusetts Laborers District Council, (43 MLC 223), Arbitrator Hatfield denied the Union’s grievance claiming that longevity should be calculated based on date of hire.  The collective bargaining agreement stated in relevant part:

“Effective July 1, 2012, an employee who completes the number of years indicated below of creditable service in the contributory retirement system shall be granted a longevity lump-sum payment in the amount set forth below for the number of years of such service